Filed: Mar. 14, 2013
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1252 LAMARCUS EALY; DONALD JACKSON; GARY SIMMONS; NABIE BANGURA; KEODRIAN BIDDLE; ANDRE BLAKE; JAMES BONDS; JERMAINE FRASER; CHARLEY HARRIS; ELISE HURTZIG; JOHNNY JONES; SHERRI SIVELS; RONALD WASHINGTON; CHAMIA EVON WHITFIELD; DIONTA CURTIS; NIAARDAY TAGOE; DONALD WASHINGTON; DARRELL JOHNSON; BROCK ASHBAUGH; ANTWINE STANLEY, Plaintiffs - Appellees, v. PINKERTON GOVERNMENT SERVICES, INC., Defendant – Appellant. Appeal from t
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1252 LAMARCUS EALY; DONALD JACKSON; GARY SIMMONS; NABIE BANGURA; KEODRIAN BIDDLE; ANDRE BLAKE; JAMES BONDS; JERMAINE FRASER; CHARLEY HARRIS; ELISE HURTZIG; JOHNNY JONES; SHERRI SIVELS; RONALD WASHINGTON; CHAMIA EVON WHITFIELD; DIONTA CURTIS; NIAARDAY TAGOE; DONALD WASHINGTON; DARRELL JOHNSON; BROCK ASHBAUGH; ANTWINE STANLEY, Plaintiffs - Appellees, v. PINKERTON GOVERNMENT SERVICES, INC., Defendant – Appellant. Appeal from th..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1252
LAMARCUS EALY; DONALD JACKSON; GARY SIMMONS; NABIE BANGURA;
KEODRIAN BIDDLE; ANDRE BLAKE; JAMES BONDS; JERMAINE FRASER;
CHARLEY HARRIS; ELISE HURTZIG; JOHNNY JONES; SHERRI SIVELS;
RONALD WASHINGTON; CHAMIA EVON WHITFIELD; DIONTA CURTIS;
NIAARDAY TAGOE; DONALD WASHINGTON; DARRELL JOHNSON; BROCK
ASHBAUGH; ANTWINE STANLEY,
Plaintiffs - Appellees,
v.
PINKERTON GOVERNMENT SERVICES, INC.,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:10-cv-00775-PJM)
Argued: December 4, 2012 Decided: March 14, 2013
Before MOTZ, FLOYD, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Robert G. Ames, VENABLE, LLP, Washington, D.C., for
Appellant. Michael Timothy Anderson, MURPHY ANDERSON, PLLC,
Washington, D.C., for Appellees. ON BRIEF: John F. Cooney,
VENABLE, LLP, Washington, D.C.; Thomas H. Strong, Mark D.
Maneche, VENABLE, LLP, Baltimore, Maryland, for Appellant. Mark
Hanna, Renee M. Gerni, MURPHY ANDERSON, PLLC, Washington, D.C.;
Arthur P. Rogers, Keira M. McNett, D.C. EMPLOYMENT JUSTICE
CENTER, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
This dispute arises in the context of an action
brought by private service employees for allegedly unpaid wages
while working for Pinkerton Government Services, Inc.
(“Pinkerton”), a government contractor at Andrews Air Force
Base. 1 The district court granted the employees’ motion for
class certification and Pinkerton filed this appeal. Pinkerton
seeks review of the district court’s grant of class
certification as well as review of an earlier denial of its
motion for summary judgment based on the federal enclave
doctrine.
We conclude that Supreme Court precedent demands a
more rigorous analysis as to whether class certification
requirements listed in Rule 23 of the Federal Rules of Civil
Procedure have been satisfied in this case. We also conclude
that Pinkerton has failed to demonstrate that the federal
enclave doctrine is inextricably intertwined with, or necessary
to ensure meaningful review of, the class certification
requirements found in Rule 23. Accordingly, we vacate and
remand for reconsideration the employees’ motion for class
1
Andrews Air Force Base was recently consolidated with an
adjacent military facility and renamed Joint Base Andrews. For
the sake of simplicity, we will refer to the facility as Andrews
Air Force Base.
3
certification and decline to exercise pendent appellate
jurisdiction over Pinkerton’s motion for summary judgment based
on the federal enclave doctrine.
I.
A.
Pinkerton is a private contractor that provides a
variety of security services. From December 2007 through
September 2011, Pinkerton performed civilian security services
as a subcontractor to a contract between Southeast Protective
Service and Andrews Air Force Base. Andrews Air Force Base is a
federal military enclave acquired by the United States from
Maryland in 1942. Appellees LaMarcus Ealy, Donald Jackson, Gary
Simmons, et al. (“Appellees”) are current and former security
officers employed by Pinkerton at Andrews Air Force Base.
Two of Pinkerton's practices at Andrews Air Force Base
are at the heart of this case: Pinkerton's policies regarding
compensation for time spent (1) disarming; and (2) during meal
breaks.
1.
Disarming
The shifts worked by Pinkerton's employees at Andrews
Air Force Base consisted of alternating 30 minute periods: 30
minutes at their guard post, followed by 30 minutes on standby
4
at an on-site guard shack. At the beginning of each shift,
Pinkerton required its security personnel employed at Andrews
Air Force Base to report to the base armory to obtain weapons
and equipment to be used during their respective shifts. At the
conclusion of each shift, Pinkerton required its employees to
report back to the base armory to deposit the weapons and
equipment, that is, to disarm. This process of disarming took
Pinkerton employees approximately 15 minutes to complete.
According to Appellees, prior to November 2009, Pinkerton
employees were not compensated for time spent disarming. 2
2.
Meal Breaks
Pursuant to its subcontract, Pinkerton was required to
provide all of its security personnel at Andrews Air Force Base
with off-duty meal breaks. Under Pinkerton's contract,
Pinkerton was to "provide shift relief for employees during
meals and scheduled breaks as required by state and local law,"
S.A. 54, and Pinkerton's security personnel were to “be relieved
2
In November 2009, Pinkerton informed Appellees that their
start time on their timesheets should be the time they begin the
arming procedure, and their end time should be the time they
complete the disarming procedure. Appellees originally alleged
in Count I of their Complaint that they were not properly
compensated for time spent arming and disarming. At a hearing
before the district court, however, the Appellees abandoned
their claim with respect to arming.
5
to take meals off/away from posts." Id. 3 Prior to November
2009, Pinkerton's employees received 30-minute uncompensated
meal breaks. After November 2009, the meal break period
increased and Pinkerton's employees received 45-minute
uncompensated meal breaks. Pinkerton's security personnel were
required to spend the majority of the duration of their meal
breaks at the guard shack, armed, and on-call in case of
emergencies.
B.
On March 29, 2010, Appellees, on behalf of themselves
and similarly situated Pinkerton employees, filed suit against
Pinkerton in the United States District Court for the District
of Maryland. Appellees alleged Pinkerton's compensation
practices related to disarming and meal breaks violated federal
and state law under the Fair Labor Standards Act ("FLSA"), 29
U.S.C. §§ 201-219, and the Maryland Wage and Hour Law and the
Maryland Wage Payment and Collection Law, Md. Code Ann, Lab. &
Empl., Title 3. 4
3
Citations to the “S.A.” refer to the Supplemental Appendix
filed by the parties in this appeal. Citations to the “J.A.”
refer to the Joint Appendix filed by the parties in this appeal.
4
Appellee Jackson also brought a state law claim for
unlawful retaliation, Md. Code Ann., Lab. & Empl., § 3-428, but
such claim is not at issue in this appeal.
6
On March 30, 2010, Appellees moved to conditionally
certify their federal claims as an FLSA opt-in collective action
under 29 U.S.C. § 216(b). On August 11, 2010, the district
court certified Appellees' FLSA claims as a collective action.
On October 8, 2010, Pinkerton moved for partial
summary judgment on Appellees' state law claims, arguing they
were barred under the federal enclave doctrine. The district
court denied Pinkerton's motion, and also denied Pinkerton's
subsequent request to certify the issue for interlocutory
appeal. Pinkerton did not petition this court directly for
interlocutory review of the federal enclave doctrine issue.
On May 30, 2011, Appellees moved for class
certification of their state law claims pursuant to Federal Rule
of Civil Procedure 23. On December 21, 2011, after hearing
argument from the parties, the district court ruled from the
bench and granted Appellees' request for class certification.
The district court began its analysis by recognizing,
generally, that there were facts common to the entire class,
that is, that all class members were uncompensated for their
meal breaks and that any obligations that allegedly accompanied
their meal breaks were applicable to all class members. 5 The
5
“The specific claim here is that the common fact with
regard to this class is to start with . . . regard to meals.
There is no question that Pinkerton does not compensate these
(Continued)
7
district court then determined that the class was sufficiently
numerous as it contained approximately 150 members. 6 Next,
similar to its commonality analysis, the district court
determined the Appellees adequately protected the interests of
the class as a whole because the meal break claim was shared
among the Appellees and all class members. 7
The district court then recognized that even if some
dissimilarities existed among the class –– because some
individuals had, in fact, been compensated for their disarming
time –– that “[did not] change the outcome about the propriety
of a class action going forward[,]” J.A. 990, because those
class members who did not suffer the disarming injury could be
excluded from any potential recovery for the disarming
component. The district court concluded by reiterating its
employees for 45 minutes of time that is allotted for their
meals.” J.A. 987.
6
“[G]iven the number of potential plaintiffs in the class,
150 more or less, 152, that would be a numerous class whose
joinder would be impractical.” J.A. 988.
7
“[T]he only other issue as far as the case is concerned
under Rule 23 is whether the representative parties will fairly
and adequately protect the interest of the class proposed.
These three proposed members all suggest that they were . . .
denied compensation during their lunch time, even though they
were required to bear weapons, have a radio, be in the curtilage
and so on and so forth. And that in the Court’s view, at least
at this stage, is strong evidence, if you will that there was a
common fact that could be finally established on the merits of
the case.” J.A. 988–89.
8
determination that the Appellees could adequately protect the
interests of the class and by determining Appellees’ counsel
could adequately represent the class as a whole. 8
The district court memorialized its oral opinion in a
brief, conclusory three-page written order dated January 11,
2012. The district court’s order, which did not provide any
further analysis, defined the class as “[a]ll current and/or
former employees of Pinkerton Government Services who worked at
Andrews Air Force Base and held non-exempt positions as civilian
security guards since December 2007.” J.A. 1010.
On January 27, 2012, pursuant to Federal Rule of Civil
Procedure 23(f), Pinkerton petitioned this court for
interlocutory review of the district court's grant of class
certification of Appellees’ state law claims. 9 On appeal,
Pinkerton also requested that this court exercise its pendent
appellate jurisdiction to review the district court's earlier
decision to deny Pinkerton's motion for partial summary judgment
8
“The question about whether the representative parties
will fairly and accurately protect the interest of the class,
the plaintiffs have all been security guards and there’s no
question as to their at least truthfulness, as to their own
situation when they were with Pinkerton at Andrews Air Force
Base.” J.A. 991.
9
Pinkerton did not seek review of the district court’s
decision to certify Appellees’ federal FLSA claims as an opt-in
collective action.
9
on Appellees' state law claims based on the federal enclave
doctrine. On February 29, 2012, we granted Pinkerton's petition
for interlocutory review.
II.
We review a district court’s Rule 23 class
certification decision for an abuse of discretion. Brown v.
Nucor Corp., 576 F.3d 149, 152 (4th Cir. 2009).
We exercise pendent appellate jurisdiction at our own
discretion, in “limited and narrow” circumstances. Rux v.
Republic of Sudan, 461 F.3d 461, 475 (4th Cir. 2006).
III.
A.
Class Certification
We begin by addressing the central subject of this
appeal: the district court’s grant of Appellees’ motion for
class certification.
Rule 23 of the Federal Rules of Civil Procedure
governs the procedures related to class actions. Rule 23
contains two provisions that the party seeking class
certification must satisfy in order for a class action to be
maintained: Rule 23(a); and Rule 23(b).
10
Under Rule 23(a), an individual or group of
individuals may operate as a representative of a class only if:
(1) the class is so numerous that joinder of all
members is impracticable;
(2) there are questions of law or fact common to the
class;
(3) the claims or defenses of the representative
parties are typical of the claims or defenses of the
class; and
(4) the representative parties will fairly and
adequately protect the interests of the class.
Fed. R. Civ. P. 23(a).
In addition, the class representative must satisfy one
of the class action requirements found in Rule 23(b). In this
case, the district court concluded Appellees had satisfied Rule
23(b)(3), which, in relevant part, permits a class action if
the court finds that the questions of law or fact
common to class members predominate over any questions
affecting only individual members, and that a class
action is superior to other available methods for
fairly and efficiently adjudicating the controversy.
Fed. R. Civ. P. 23(b)(3). 10
10
A class action may also be maintained under Rule 23(b) if
either:
(1) prosecuting separate actions by or against individual
class members would create a risk of:
(A) inconsistent or varying adjudications with respect to
individual class members that would establish incompatible
standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members
that, as a practical matter, would be dispositive of the
(Continued)
11
On appeal, Pinkerton argues Appellees failed to
satisfy the threshold Rule 23(a)(2) and (3) commonality and
typicality requirements, respectively, for their disarming and
meal break claims and failed to show, pursuant to Rule 23(b)(3),
common questions of law or fact predominate over questions
affecting individual members.
1.
Commonality
Under the Rule 23(a) commonality criterion, class
representatives must show that “there are questions of law or
fact common to the class.” Fed. R. Civ. P. 23(a)(2). Although
“for purposes of Rule 23(a)(2) even a single common question
will do,” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2556
(2011) (internal quotations and alterations omitted), not just
any common question will do. For example, asking whether all
potential class members work for the same company, are eligible
for the same remedies, or even suffered a violation of the same
interests of the other members not parties to the individual
adjudications or would substantially impair or impede their
ability to protect their interests; [or]
(2) the party opposing the class has acted or refused to
act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole; . . . .
Fed. R. Civ. P. 23(b).
12
provision of law is insufficient. Wal-Mart, 131 S. Ct. at 2551.
Rather, “[c]ommonality requires the plaintiff to demonstrate
that the class members have suffered the same injury[,]”
id.
(internal quotation marks and citation omitted) –- a shared
injury that also springs forth from the same “common
contention.”
Id. “That common contention, moreover, must be of
such a nature that it is capable of classwide resolution –-
which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of
the claims in one stroke.”
Id. The Seventh Circuit’s decision
in Ross v. RBS Citizens, N.A.,
667 F.3d 900 (7th Cir. 2012), is
illustrative. In Ross, the Seventh Circuit concluded, “the glue
holding together the Hourly and ABM classes is based on the
common question of whether an unlawful overtime policy prevented
employees from collecting lawfully earned overtime
compensation.” 667 F.3d at 910.
2.
Typicality
Typicality under Rule 23(a)(3) requires an inquiry
into the “representative parties’ ability to represent a
class . . . .” Deiter v. Microsoft Corp., 436 F.3d 461, 466
(4th Cir. 2006). Although a representative’s claims and the
claims of other members of the class need not be “perfectly
identical or perfectly aligned,”
id. at 467, the
13
representative’s pursuit of his own interests “must
simultaneously tend to advance the interests of the absent class
members.” Id. at 466.
In order to conduct a typicality analysis a court must
compare “the plaintiffs’ claims or defenses with those of the
absent class members.”
Id. at 467. That analysis will
necessarily entail “[1] a review of the elements of plaintiffs’
prima facie case[;] . . . [2] the facts on which the
plaintiff[s] would necessarily rely to prove [those elements,]”
id.; and (3) a determination of to what extent “those facts
would also prove the claims of the absent class members.” Id.;
accord Soutter v. Equifax Info. Servs., LLC, No. 11-1564,
2012
WL 5992207 (4th Cir. Dec. 3, 2012).
3.
Predominance
Under Rule 23(b)(3), whether common questions
predominate over individual questions is a separate inquiry,
distinct from the requirements found in Rule 23(a). See Wal-
Mart, 131 S. Ct. at 2556. This balancing test of common and
individual issues is qualitative, not quantitative. Gunnells v.
Healthplan Servs., Inc.,
348 F.3d 417, 429 (4th Cir. 2003)
(citing In re Am. Med. Sys., Inc.,
75 F.3d 1069, 1080 (6th Cir.
1996)). Indeed, common issues of liability may still
predominate even when some individualized inquiry is required.
14
See id. For example, in Stillmock v. Weis Markets, Inc., 385 F.
App’x 267 (4th Cir. 2010), we considered whether individual
statutory damages under the Fair and Accurate Credit Transaction
Act rendered the plaintiffs’ action so individualized as to
preclude class-wide treatment. In answering that question in
the negative, we recognized that where “the qualitatively
overarching issue by far is the liability issue of the
defendant’s willfulness, and the purported class members were
exposed to the same risk of harm every time the defendant
violated the statute in the identical manner, the individual
statutory damages issues are insufficient to defeat class
certification under Rule 23(b)(3).” 385 F. App’x at 273.
We have noted, “[i]n a class action brought under Rule
23(b)(3), the ‘commonality’ requirement of Rule 23(a)(2) is
‘subsumed under, or superseded by, the more stringent Rule
23(b)(3) requirement that questions common to the class
predominate over’ other questions.” Lienhart v. Dryvit Sys.,
Inc., 255 F.3d 138, 146 n.4 (4th Cir. 2001) (quoting Amchem
Prods., Inc. v. Windsor,
521 U.S. 591, 609 (1997)).
Nonetheless, the Rule 23(a) commonality requirement, and the
Rule 23(b)(3) predominance requirement remain separate inquiries
and the inquiries should not be “blended.” Wal-
Mart, 131 S. Ct.
at 2556 (alterations omitted). However, a court may use some of
the same tools to construct the two separate inquiries. A court
15
may analyze the dissimilarities between class members to
determine whether “even a single common question,” id. (internal
quotations and alterations omitted), exists for Rule 23(a)
purposes and then to determine whether common questions
predominate for Rule 23(b)(3) purposes. See
id.
4.
Rigorous Analysis
In Wal-Mart, the Supreme Court emphasized that the
Rule 23 prerequisites are not to be taken lightly and “do[] not
set forth a mere pleading standard.” 131 S. Ct. at 2551.
Rather, “[a] party seeking class certification must
affirmatively demonstrate his compliance with the Rule –- that
is, he must be prepared to prove that there are in fact
sufficiently numerous parties, common questions of law or fact,
etc.” Id. As a result, the trial court may find it necessary
to “probe behind the pleadings” and ultimately, will need to
conduct a “rigorous analysis” to determine whether the Rule 23
prerequisites have been satisfied.
Id. (internal citations and
quotation marks omitted); see also Amgen Inc. v. Conn. Ret.
Plans and Trust Funds, 568 U.S. ___, No. 11-1085, slip op. at 9
(2013) (cautioning that in a rigorous class certification
analysis, “[m]erits questions may be considered to the extent ––
but only to the extent –– that they are relevant to determining
whether the Rule 23 prerequisites for class certification are
16
satisfied”). In the end, “[a]ctions such as this one, . . . may
be brought only if the numerosity, commonality, typicality,
representativeness, predominance, and superiority requirements
of both Rule 23(a) and (b)(3) are met.” Lienhart, 255 F.3d at
146.
In this case, after reviewing the district court’s
oral ruling and brief written order, we find the district court
abused its discretion by failing to provide a “rigorous
analysis” sufficient to enable us to conduct meaningful
appellate review.
We first turn to commonality. The district court did
note that there appeared to be a common question of fact among
all the class members: whether or not they were compensated for
their meal breaks. It is undisputed that they were not. Given
the factual circumstances of their meal breaks, a common
question of law could be whether or not the class members should
have been compensated for that time under Maryland law. But
whether those common questions are dependent upon a “common
contention,” Wal-Mart, 131 S. Ct. at 2551, the resolution of
which will resolve “each one of the claims in one stroke[,]”
id., is a determination for the district court to make in the
first instance. See M.D. ex rel. Stukenberg v. Perry,
675 F.3d
832 (5th Cir. 2012) (remanding class certification issue to
allow the district court to conduct rigorous analysis).
17
The same can be said of the typicality requirement.
The district court’s oral ruling and brief written order did not
clearly address the typicality requirement in any meaningful way
that this court can identify. The district court did not
compare the claims of the Appellees with the class as a whole to
determine whether Appellees’ claims are typical of the class.
See e.g., Deiter, 436 F.3d at 466–67.
Finally, the district court did not conduct the
required separate inquiry as to whether common questions of law
or fact predominate over those affecting only individual class
members. Rather, the district court’s limited oral ruling
appeared to blend the commonality and predominance inquiries –-
which Wal-Mart counsels against. The district court did appear
to acknowledge that there may be some dissimilarities between
class members and that these dissimilarities did not “change the
outcome about the propriety of a class action . . . .” J.A.
990. But whether this was in part, or in its entirety, the
district court’s predominance analysis is unclear, and in either
case, insufficiently rigorous. The district court also did not
address whether, in fact, the class action is the superior
method for resolving this controversy compared to other
alternatives. See, e.g., Stillmock, 385 F. App’x at 273–75.
Appellees suggest that to compensate for any
deficiency in the pleading relied on by the district court, we
18
could probe behind the pleadings and look to the declarations.
However, we note that during the district court hearing on
Appellees’ motion for class certification, Appellees undercut
their own argument in this regard. Appellees stated:
You have the underlying declarations. That is what
you should read . . . . And when you read any one of
those 31 declarations, it’s not at all clear that the
description that, [“]I never worked beyond the, I
never worked beyond my scheduled shift time[”] refers
to anything but the time, but the present time period.
That is the time period after November of 2009.
In fact, many of the declarants specifically
refer to the post-2009 procedure of signing in and
signing out at the beginning and end of their shift.
You know, at –- when it’s clear that before November
of 2009, you were supposed to sign out at five o’clock
and not at 5:15, for instance, and that’s the 15
minutes we’re talking about.
So, you know, when the declarants are asked to
say whether sometimes, rarely, always, never, some of
the time they ever worked more than their scheduled
work time, the context of the declaration is clear
that they’re acting within the framework of the, of
the wage recording policies that have been in place
since November of ’09.
J.A. 975. Thus, the class member declarations, by the Appellees
own admission, speak only to the commonality of time worked
after November 2009, a time period, which with respect to the
disarming claim, is not even at issue in this case.
General Telephone Company of the Southwest v. Falcon,
457 U.S. 147 (1982), which involved allegations of employment
discrimination, is also instructive here. As the Supreme Court
19
reaffirmed in Wal-Mart, in Falcon, commonality and typicality
were lacking where,
[c]onceptually, there is a wide gap between (a) an
individual’s claim that he has been denied a promotion
[or higher pay] on discriminatory grounds, and his
otherwise unsupported allegation that the company has
a policy of discrimination, and (b) the existence of a
class of persons who have suffered the same injury as
that individual, such that the individual’s claim and
the class claim will share common questions of law or
fact and that the individual’s claim will be typical
of the class claims.
131 S. Ct. at 2553 (quoting Falcon, 457 U.S. at 157-58)
(internal quotation marks omitted). Here, there is a more
narrow gap between (a) Appellees’ claim that they have been
denied pay based on Pinkerton’s employee-wide, under-inclusive
definition of time-worked, and (b) the existence of a class of
fellow employees who suffered that same injury. But whether
that gap has, in fact, been successfully bridged, is for the
district court to determine in the first instance.
In sum, a rigorous analysis into the Rule 23(a) and
Rule 23(b)(3) requirements will clearly contain the following
elements. First, a district court must decide whether “the
class is so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1).
Second, a district court must determine whether even a
single question of fact or law is common to the class. Such
questions will depend on a “common contention,” the resolution
20
of which will resolve “an issue that is central to the validity
of each one of the claims in one stroke.” Wal-Mart, 131 S. Ct.
at 2551; see also
Ross, 667 F.3d at 908–10 (7th Cir. 2012).
Third, a district court must determine whether the
claims (or defenses) of the representative parties are typical
of those of the class as a whole by comparing the claims of the
representatives with the claims of the absent class members and
determining whether they tend to advance the same interests.
See Deiter, 436 F.3d at 466–67.
Fourth, a district court must determine whether “the
representative parties will fairly and adequately protect the
interests of the class.” Fed. R. Civ. P. 23(a)(4).
Finally, if seeking class certification pursuant to
Rule 23(b)(3), a district court must determine whether common
questions of law or fact predominate over individual questions
such that a class action is the superior method for resolving
the controversy. This separate inquiry will require a district
court to balance common questions among class members with any
dissimilarities between class members. See Gunnells, 348 F.3d
at 427–30. If satisfied that common questions predominate, a
district court should then also consider whether any alternative
methods exist for resolving the controversy and whether the
class action method is in fact superior. See, e.g., Stillmock,
385 F. App’x at 273–75.
21
We make no determination at this point as to which
path the district court should take. Perhaps a class should be
certified, perhaps one or more subclasses should be certified,
or perhaps class certification should be denied entirely. We
only conclude at this point, that what is required, is a more
rigorous analysis into whether, in this case, the “numerosity,
commonality, typicality, representativeness, predominance, and
superiority requirements of both Rule 23(a) and (b)(3) are met.”
Lienhart, 255 F.3d at 146.
B.
Pendent Jurisdiction
We now turn to Pinkerton’s argument in favor of our
exercise of pendent appellate jurisdiction. Pinkerton asks this
court to exercise pendent appellate jurisdiction over the
district court’s order denying partial summary judgment on
Appellees’ state law claims based on the federal enclave
doctrine. 11
11
The federal enclave doctrine derives from Article I,
Section 8, Clause 17 of the United States Constitution. The
Constitution provides that Congress shall have the power “[t]o
exercise exclusive Legislation . . . over all Places purchased
by the Consent of the Legislature of the State in which the Same
shall be, for the Erection of Forts, Magazines, Arsenals, dock-
Yards, and other needful Buildings.” U.S. Const. art. I, § 8,
cl. 17. While the general principle of the federal enclave
doctrine is that only Congress shall have exclusive legislative
authority over federal enclaves, the Supreme Court and Circuit
Courts have recognized that certain circumstances may permit
(Continued)
22
Our appellate jurisdiction is limited to final orders
from the district courts with certain limited exceptions. Rux
v. Republic of Sudan, 461 F.3d 461, 474 (4th Cir. 2006) (citing
28 U.S.C. § 1291 (2000)). Pendent appellate jurisdiction is “a
judicially-created, discretionary exception” to the requirement
that courts of appeals can only hear appeals from final orders.
Id. at 475. As such, “[it] is an exception of limited and
narrow application driven by considerations of need, rather than
of efficiency.”
Id. (citing Montano v. City of Chicago,
375
F.3d 593, 599 (7th Cir. 2004)). Even if we find it permissible
to exercise pendent appellate jurisdiction, its exercise remains
discretionary. See Clem v. Corbeau,
284 F.3d 543, 549 n.2 (4th
Cir. 2002) (“Assuming that we have pendent appellate
jurisdiction of the order denying summary judgment on the state
law claims, . . . the decision to exercise such jurisdiction is
purely discretionary.”) (citing DiMeglio v. Haines,
45 F.3d 790,
808 (4th Cir. 1995)).
We have recognized that the Supreme Court’s decision
in Swint v. Chambers County Commission, 514 U.S. 35 (1995),
indicates pendent appellate jurisdiction is available in only
state law to apply. See, e.g., Goodyear Atomic Corp. v. Miller,
486 U.S. 174, 180 (1988); James Stewart & Co. v. Sadrakula,
309
U.S. 94, 99–100 (1940); Allison v. Boeing Laser Technical
Servs.,
689 F.3d 1234, 1236–38 (10th Cir. 2012).
23
two scenarios: “(1) when an issue is ‘inextricably intertwined’
with a question that is the proper subject of an immediate
appeal; or (2) when review of a jurisdictionally insufficient
issue is ‘necessary to ensure meaningful review’ of an
immediately appealable issue.” Rux, 461 F.3d at 475 (quoting
Swint, 514 U.S. at 50–51.). Our commitment to this dichotomy
has held firm. See, e.g., Evans v. Chalmers,
703 F.3d 636, 658
(4th Cir. 2012) (applying the Swint standard in the context of
an immediately appealable issue of qualified immunity in a
§ 1983 action); Bellotte v. Edwards,
629 F.3d 415, 427 (4th Cir.
2011) (same).
But the two potential pendent jurisdiction scenarios
set forth in Swint are not always so easily distinguished. See
Myers v. Hertz Corp., 624 F.3d 537, 553 n.6 (2d Cir. 2010) (“In
some cases, . . . the analysis of the two parts [of the Swint
standard] will be substantially the same.”) (citing Rein v.
Socialist People’s Libyan Arab Jamahiriya,
162 F.3d 748, 758 (2d
Cir. 1998)).
Under the first pendent jurisdiction scenario, the
Second Circuit in Myers explained that in order for two issues
in two separate rulings to be inextricably intertwined, “the
‘same specific question’ will ‘underl[ie] both the appealable
order and the non-appealable order,’ such that . . . resolution
of the question will necessarily resolve the appeals from both
24
orders at once.” 624 F.3d at 553 (quoting Stolt-Nielsen SA v.
Celanese AG,
430 F.3d 567, 576 (2d Cir. 2005)). Likewise, we
have held that a pendent issue is inextricably intertwined with
an immediately appealable interlocutory issue, and we may thus
grasp jurisdiction over the pendent issue, when resolution of
the appealable issue “necessarily decides” the pendent issue.
Rux, 461 F.3d at 476. For example, in Altman v. City of High
Point,
330 F.3d 194 (4th Cir. 2003), we found that resolution of
an interlocutory issue (whether officers were entitled to
qualified immunity in a § 1983 action) “fully resolve[d]” the
pendent issue (whether the municipality could be held liable)
because the qualified immunity inquiry revealed the officers
committed no federal constitutional violation which would have
been required to hold the municipality
liable. 330 F.3d at 207
n.10 (considering the issues “inextricably intertwined”); cf.
Evans, 703 F.3d at 654 n.11, 658–59 (exercising pendent
appellate jurisdiction over municipality’s § 1983 liability when
issues of qualified immunity fully resolved the issue, but
finding neither Swint rationale supported exercising pendent
appellate jurisdiction over state constitutional claims where
“our review of . . . immunity . . . did not require any
evaluation of the state constitutional claims”).
Under the second pendent jurisdiction scenario, review
of a pendent issue will be “necessary to ensure meaningful
25
review” of an immediately appealable issue if resolution of the
pendent issue is necessary, or essential, in resolving the
immediately appealable issue. Swint, 514 U.S. at 51; see also
United States v. North Carolina,
180 F.3d 574, 581 n.4 (4th Cir.
1999) (citing Taylor v. Waters,
81 F.3d 429, 437 (4th Cir.
1996)).
In other words, under Swint “[i]t is appropriate to
exercise pendent appellate jurisdiction only where [1]
resolution of the appealable issue necessarily resolves the
nonappealable issue, or [2] where review of the nonappealable
issue is necessary to ensure meaningful review of the appealable
one.” Berrey v. Asarco, Inc., 439 F.3d 636, 647 (10th Cir.
2006) (citing Moore v. City of Wynnewood,
57 F.3d 924, 930 (10th
Cir. 2006)).
Pinkerton contends the issues implicated by the
federal enclave doctrine in this case satisfy both Swint prongs,
that is, that they are so inextricably intertwined with, and
necessary to ensure meaningful review of, the class
certification of the Maryland state law claims, that they
warrant our review at this stage. Pinkerton argues that in
order to effectively review the district court’s grant of class
certification, we must first review whether state law is even
applicable in this case, or whether it is prohibited by the
federal enclave doctrine. Pinkerton’s argument is unavailing.
26
Pinkerton does not and cannot illustrate how the two
issues are so inextricably intertwined that resolution of the
appealable class certification issue necessarily resolves the
non-appealable federal enclave doctrine issue. This is because,
in fact, the two issues are distinct legal concepts. Whether
Appellees have satisfied the Rule 23(a) prerequisites for class
certification has no bearing on whether Appellees’ state law
claims are ultimately barred under the federal enclave doctrine.
Nor can Pinkerton illustrate how review of the federal enclave
doctrine issue is necessary in order to ensure our meaningful
review of the class certification issue. Although analysis of
the former could ultimately foreclose the need for analysis of
the latter, resolution of the federal enclave doctrine issue is
not necessary to review the class certification issue. 12
The concern raised by Pinkerton speaks to judicial
economy, which should not serve as the basis for exercising
pendent appellate jurisdiction. See Rux, 461 F.3d at 475 (“We
are constrained by the language of the Supreme Court as well as
12
Indeed, we have previously refused to invoke pendent
appellate jurisdiction even though a determination of the
pendent issue had the possibility to foreclose the underlying
suit. See Ochoa Lizarbe v. Rivera Rondon, 402 F. App’x 834,
837–38 (4th Cir. 2010) (concluding that although resolution of
the pendent issues in the defendant’s favor could have disposed
of the plaintiffs’ suit, they did not warrant our consideration
because “[t]he doctrine of pendent appellate jurisdiction is not
focused on efficiency . . . .”).
27
our own precedent from recognizing efficiency considerations as
a basis for the exercise of pendent appellate jurisdiction.”).
Other circuits have likewise refused to exercise
pendent appellate jurisdiction over a non-appealable issue in
the context of a class certification appeal. See, e.g., Myers,
624 F.3d 537 (affirming district court’s class certification
determination but refusing to exercise pendent appellate
jurisdiction over district court’s earlier denial of plaintiff’s
motion to send opt-in notice to potential class members); Poulos
v. Caesars World, Inc.,
379 F.3d 654 (9th Cir. 2004) (affirming
district court’s class certification determination but refusing
to exercise pendent appellate jurisdiction over district court’s
denial of defendant’s motion to dismiss the underlying action on
primary jurisdiction, Burford abstention, and personal
jurisdiction grounds).
Accordingly, we decline to exercise pendent appellate
jurisdiction over the district court’s denial of Pinkerton’s
motion for partial summary judgment on federal enclave doctrine
grounds.
IV.
We conclude that, consistent with Wal-Mart Stores,
Inc. v. Dukes, 131 S. Ct. 2541 (2011), a more rigorous analysis
into the Rule 23 requirements is necessary in this case to
ensure meaningful appellate review. Specifically, there must be
28
a more rigorous analysis into whether there are common questions
of law or fact, whether Appellees’ claims are typical of the
class as a whole, and whether common questions of law or fact
predominate over any questions affecting only individual
members.
We also decline to exercise pendent appellate
jurisdiction over Pinkerton’s motion for partial summary
judgment to consider whether Appellees’ state law claims are
barred under the federal enclave doctrine. We exercise pendent
appellate jurisdiction sparingly, at our own discretion, as
“[it] is an exception of limited and narrow application driven
by considerations of need, rather than of efficiency.” Rux v.
Republic of Sudan, 461 F.3d 461, 475 (4th Cir. 2006). Pinkerton
has not shown that the federal enclave doctrine is either
inextricably intertwined with, or necessary to ensure meaningful
appellate review of, the Rule 23 issues of class certification
sufficient to invoke pendent appellate jurisdiction.
Pinkerton’s federal enclave doctrine argument, if necessary,
should be considered in the wake of a final order.
We therefore vacate and remand the district court’s
class certification order for the required rigorous analysis and
deny Pinkerton’s request to review the district court’s denial
of its motion for partial summary judgment.
VACATED AND REMANDED
29
